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Diaz v. United States

United States Court of Appeals, Federal Circuit

April 11, 2017

KEVIN DIAZ, Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

         Appeal from the United States Court of Federal Claims in No. 1:16-cv-00138-MBH, Judge Marian Blank Horn.

          Kevin Diaz, Boston, MA, pro se.

          Alison Vicks, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Douglas K. Mickle.

          Before Wallach, Chen, and Stoll, Circuit Judges.

          Wallach, Circuit Judge.

         Appellant Kevin Diaz submitted an unsolicited proposal to the U.S. Department of the Navy's ("Navy") Indian Head Explosive Ordnance Disposal Technology Division ("IHEODTD") pursuant to 48 C.F.R. (Federal Acquisition Regulation ("FAR")) Subpart 15.6 (2015). A contracting officer from the IHEODTD conducted an initial review of Mr. Diaz's proposal and determined that it did not satisfy the requirements of FAR 15.606-1, a decision that the Contracting Officer affirmed when Mr. Diaz requested reconsideration.

         Mr. Diaz filed a complaint in the U.S. Court of Federal Claims challenging the Contracting Officer's rejection of his unsolicited proposal. Appellee the United States ("the Government") moved to dismiss. The Court of Federal Claims granted the Government's motion and dismissed Mr. Diaz's Complaint for, inter alia, lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims ("RCFC") because he lacked standing under 28 U.S.C. § 1491(b)(1) (2012). See Diaz v. United States, 127 Fed.Cl. 664, 677 (2016).

         Mr. Diaz appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). We affirm.

         Discussion

         I. Standard of Review and Legal Standards

         We review a Court of Federal Claims decision to dismiss for lack of jurisdiction de novo. Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir. 2010). The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013).

         The Court of Federal Claims's jurisdiction over bid protest disputes is articulated in § 1491(b)(1). It provides that the Court of Federal Claims has jurisdiction to adjudicate an "action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." Id. Section 1491(b)(1) includes three related requirements that are pertinent to the jurisdictional inquiry in this case, with the first addressing the Court of Federal Claims's subject matter jurisdiction and the second and third addressing standing.

         First, subject matter jurisdiction under § 1491(b)(1) may be established for a "violation of a statute or regulation in connection with a procurement or a proposed procurement." RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999). The phrase "in connection with" is "very sweeping in scope" and "includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout." Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (internal quotation marks, emphasis, and citations omitted). Under the circumstances here, Mr. Diaz's allegation that the Contracting Officer improperly rejected his unsolicited proposal pursuant to FAR 15.606-1 constitutes a non-frivolous allegation of a violation of a regulation in connection with a proposed procurement and, thus, is sufficient to meet the "in connection with" requirement of the statute. See id. at 1345 n.1 ("A non-frivolous allegation of a statutory or regulatory violation in connection with a procurement or proposed procurement is sufficient to establish jurisdiction."). Mr. Diaz's proposal qualifies as a "proposed procurement" that was reviewed by the Government, as indicated in the record by Mr. Diaz's receipt of a significant number of emails from government personnel regarding the status of his proposal, see Resp't's App. at 88-154, and the Contracting Officer's "careful and specific" review of, and response to, the proposal, Diaz, 127 Fed.Cl. at 675.

         The second and third of the three requirements of § 1491(b)(1) that are pertinent to the jurisdictional inquiry relate to a party's standing to file a bid protest. See, e.g., Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002). A party seeking to establish jurisdiction under § 1491(b)(1) must show that it meets § 1491(b)(1)'s standing requirements, which are "more stringent" than the standing requirements imposed by Article III of the Constitution. Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). To meet these more stringent requirements, a plaintiff must make two separate showings. The party first must show that it is an "interested party." Digitalis Educ. Sols., Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012). To satisfy the interested party requirement, "a party must show that it [(1)] is . . . an actual or prospective bidder and [(2)] . . . has a direct economic ...


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